3 Andy Payne Payne Mitchell Law Group L.L.P Turtle Creek Boulevard, Suite 1400 Dallas, TX (214) Andy Payne is the founding partner of Payne Mitchell Law Group. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and is Board Certified in Civil Trial Law by the National Board of Trial Advocacy. He is licensed in Texas, Oklahoma & Arkansas, but routinely handles complex products liability, aviation & personal injury litigation throughout the country. He graduated third in his class from Baylor Law School where he served as Executive Editor of the Baylor Law Review. D Magazine has selected Andy as one of the Best Lawyers in Dallas for the last 8 years. Andy has been selected by Texas Monthly as both a Super Lawyer and as one of the top 100 lawyers in the State of Texas and DFW. Andy has also been selected for inclusion in The Best Lawyers in America. And U.S. News recently named his firm a tier one personal injury firm in Dallas. Mr. Payne is currently serving on the State Bar Pattern Jury Charge Committee for Products Liability. He has also served as a past chair of the State Bar Advanced Personal Injury Seminar. Mr. Payne is a sought after products liability and personal injury expert. Currently, he is an Adjunct Professor of products liability at the SMU Law School and a frequent lecturer for lawyer s groups across the state. Mr. Payne s practice is focused on product defect and aviation cases. He is currently serving on the Plaintiffs Steering Committee for the Texas MDL on Toyota Sudden Acceleration claims. He also routinely handles significant personal injury cases arising from commercial vehicle collisions. In his practice, he handles cases involving life-changing events where millions of dollars and the client s longterm security are at stake. Mr. Payne is on the Board of Directors for the State Bar of Texas. He is a Director Emeritus of the Dallas Trial Lawyers Association. He is a Fellow of the Texas Bar Foundation, the Dallas Bar Foundation and a member of the Texas Center for Legal Ethics & Professionalism. He is a Fellowship Member and on the Board of Directors for the Texas Trial Lawyers Association. He is also a member of the AAJ, the DBA, the ABA. He has earned Martindale-Hubbell s highest rating (AV) through a peer review evaluation.

7 PRODUCTS LIABILITY UPDATE 2014 During the past year, significant developments in products liability law occurred, running the gamut from jurisdictional and preemption issues to pretrial and trial issues, such as expert discovery disputes, peremptory challenges, and post-trial settlement credit disputes. Although the political climate at the Texas Supreme Court is still decidedly pro-tort reform, a handful of decisions this year indicate that proplaintiff decisions are possible at the intermediate appellate court level and in federal cases, including appeals at the Fifth Circuit level. The Texas Supreme Court is more clearly out of step with logic, other states opinions, the restatements, accepted jurisprudence and even conservative intermediate appellate courts. Litigants also are continuing to sort out issues created over a decade ago in 2003, when the Texas Legislature passed House Bill 4. As a general matter, House Bill 4 affected major changes in the products liability arena through: 1) the creation of presumptions of no liability in certain cases; 2) the creation of a 15 year statute-of-repose; and 3) the creation of immunity for passive sellers. These changes are codified in the Texas Civil Practice & Remedies Code at sections: (creating a presumption of no design or marketing defects in certain instances); (creating a presumption of no marketing defects in certain pharmaceutical cases); (creating a 15 year statute-of-repose); and (creating immunity for passive sellers). This paper contains a case law update that first outlines and reviews Texas Supreme Court opinions issued this year, including the Kia Motors Corp. v. Ruiz case, which addressed several products liability issues to include interpretation of the statutory presumption found in Texas Civil and Practice and Remedies Code Section II of the paper then discusses recent federal decisions regarding preemption with respect to generic drug manufacturers in pharmaceutical litigation. Section III analyzes recent Fifth Circuit rulings in favor of injured consumers seeking redress for injuries from defective products manufactured by foreign entities. Section IV discusses a Fifth Circuit unpublished opinion dealing with statute of limitations and the discovery rule. In Section V, the paper summarizes two intermediate appellate court decisions that have been granted review by the Texas Supreme Court. Last, the paper reviews the most important state 1 appellate court opinions and federal district court decisions dealing with products liability over the past year. I TEXAS SUPREME COURT OPINIONS A. Kia Motors Corp. v. Ruiz, 57 Tex. Sup. Ct. J. 375 (Tex. 2014). In March of this year, the Texas Supreme Court issued its opinion in Kia Motors Corp. v. Ruiz, which ruled against the Plaintiffs, overturning a jury verdict and remanding the case for a new trial. 1. Background On January 16, 2006, Andrea Ruiz and her daughter Suzanna were involved in a head-on collision with a pick-up truck driven by Harvey Tomlin. Andrea was driving a 2002 Kia Spectra that she and her husband owned, and Suzanna was riding in the front passenger seat. During the collision, Suzanna s air bag deployed, and she escaped with only minor injuries. Andrea s air bag, however, did not, and she died at the scene of the accident from two dislocated vertebrae in her neck. In an ominous first footnote of the opinion, the Texas Supreme Court noted that the air bag warning light had switched on nearly a week before the accident and remained on until the accident, but that the Ruizes had not serviced the vehicle before the accident. The Ruizes filed suit against Kia Motors Corporation and Kia Motors America, Inc., asserting, in part, that the 2002 Spectra air-bag system was defectively designed and that this defect resulted in the failure of the driver s side air bag to deploy during the collision. 1 At the jury trial against Kia, the Ruizes asserted the negligent design claim 2 based on the premise that defective wiring connectors in the air-bag system produced an open circuit that caused the air bag to fail. Eight days before the accident, Lawrence Ruiz installed a new radio/cd player in the KIA. During trial, Kia contended the radio Lawrence had installed in the Kia may have caused the open circuit. The jury found in favor of the Ruizes, concluding, in part, that Kia negligently designed the automobile s air bag system, which was a proximate cause of Andrea Ruiz s death and that Kia was grossly negligent. In addition, the jury determined that Tomlin s negligence was also a proximate cause of Andrea s injuries, but that Lawrence Ruiz s negligence, if any, was not a proximate cause of her 1 The Ruizes also brought a negligence claim against the other driver, Mr. Tomlin, with whom they settled prior to trial. 2 Although the Ruizes also originally asserted a strictliability claim against Kia, the jury charge only included a negligence question.

8 injuries. The jury apportioned forty-five percent of responsibility for Andrea s injuries to Kia and fiftyfive percent of responsibility to Tomlin and awarded the Ruizes $1, 972, 000 in compensatory damages and $2, 500, 000 in exemplary damages. After the jury trial had concluded, the trial court denied Kia s motion for judgment notwithstanding the verdict. In addition and due to the fact that the jury was not unanimous in finding Kia negligent, the court disregarded the jury s gross negligence and punitivedamages findings, reducing the amount of actual damages recoverable from Kia by its percentage of responsibility to award the Ruizes $887,400 in damages, plus costs and pre and post judgment interest. The court of appeals affirmed. See 348 S.W.3d Statutory Presumption found in TEX. PRAC. & REM. CODE In its opinion, the Supreme Court first addressed Kia s argument that the trial court erred by refusing to apply the statutory presumption of nonliability found in Texas Civil Practice and Remedies Code (a). This statute creates a rebuttable presumption in favor of product manufacturers and sellers. The rebuttable presumption is created when the manufacturer or seller establishes that the product s formulation, labeling or design complied with mandatory safety standards or regulations adopted or promulgated by the federal government or an agency of the federal government. 3 Further, the seller and manufacturer must establish that those safety standards or regulations were applicable at the time of manufacture and governed the risk that allegedly caused the harm. 4 Once the seller or manufacturer establishes compliance with the mandatory safety standards or regulations a rebuttable presumption is created that the manufacturer and seller is not liable for injury caused by some aspect of the formulation, labeling or design of the product. 5 The claimant may rebut this presumption by proving that the mandatory federal safety standards or regulations applicable to the produce were inadequate to protect the public from unreasonable risks of injury or damage. 6 Kia argued that the trial court should have applied this presumption because the design of the 2002 Kia Spectra in question purportedly contained an air bag system in compliance with Federal Motor Vehicle Safety Standards ( FMVSS ) 208, which was prescribed under the National Traffic and Motor Vehicle Act of 1966, as amended. FMVSS 208, requires that vehicles manufactured on or after September 1, 1997, have both a front driver s side and passenger s side air bags. 7 To comply with FMVSS 208, the manufacturer must meet certain measuring standards concerning various injury criteria and the protection provided by the air bags to dummy passengers of the vehicle during crash tests. 8 The Supreme Court first noted that because there was no dispute that FMVSS 208 was applicable to the Spectra and its air-bag system at the time of manufacture, the Court would not address the second prong of the analysis. Accordingly, whether or not Kia would receive the nonliability presumption hinged on two issues: a) did FMVSS208 qualify as a mandatory safety standard with which the product complied; and b) did FMVSS208 govern the product risk that allegedly caused the harm. 9 The Court then addressed each issue in turn. a. Safety Standard With respect to whether the Spectra s air bag system complied with a mandatory federal safety standard, the Court addressed the plaintiffs two arguments that the first prong of this presumption was not satisfied. First, the Court agreed with the Court of Appeals that the testimony and exhibits at trial established that the 2002 Spectra s design complied with FMVSS 208. Second, the Court addressed the Ruizes argument that compliance with the FMVSS 208 was immaterial because the regulation is a performance standard, not a design standard. The Court disagreed, finding that the plain language of section supports Kia s interpretation because it states that the product s design must comply with federal safety standards or regulations. The Court then pointed out that the Federal Motor Vehicle Safety Standards are indeed safety standards, so whether the safety standard specified a design or not was immaterial. Thus, the Court concluded that Kia had satisfied the first prong of section (a). b. Product Risk that Allegedly Governed the Harm The Court started out discussing two Fifth Circuit cases that have addressed the nonliability presumption: Wright v. Ford Motor Co., 508 F.3d See TEX. PRAC. & REM. CODE (a). 4 Id. 5 Id. 6 Id. at (b)(1) C.F.R , S (a)(1), S Id , S5.1, S6. 9 TEX. PRAC. & REM. CODE (a).

9 (5th Cir. 2007) and Trenado v. Cooper Tire & Rubber Co., 465 F. App x 375 (5th Cir. 2012). While both cases found against the plaintiffs on the issue of whether the particular safety standard governed the product risk that allegedly caused the harm, the Supreme Court agreed with the 5th Circuit s reasoning in both cases that section demands that the safety standard at issue govern the product risk rather than the specific product defect, stating that such an analysis requires a close examination of both the product risk resulting from the purported design defect and the parameters of the regulation at issue. In the Kia Motors case, the Court noted, the Ruizes alleged that the air bag s defectively designed wiring harness rendered it prone to open circuits and the air bag s corresponding failure to deploy when it should have. 10 The Court reasoned that FMVSS 208 concerns measurements of how well the vehicle s air bags and other restraint systems protect passengers. However, the test presumes air bag deployment. 11 Thus, the test does not evaluate the air bag failure rate, which was the risk that was at issue in the case. The Court observed Kia had conceded that FMVSS 208 does not test for reliable deployment, but instead had argued in its post-submission brief that to the extent the standard is inadequate to protect the public from the risk of injury, section (b)(1) provides the plaintiff with the chance to rebut the nonliability presumption. Disagreeing, the Court pointed out that there is a significant difference between an inadequate standard and a standard that simply does not contemplate the risk at issue. 12 Accordingly, the Court concluded FMVSS 208 did not govern the product risk (the failure of the air bag to deploy) that caused the harm. This portion of the Court s holding is especially significant for Plaintiffs attorneys because it demonstrates how critical the allegations and framing of the risk are in products liability cases in Texas. Indeed, while mandatory federal regulations may apply, a careful analysis of the risk sought to be protected against is essential to determining the existence of a presumption. A careful and detailed analysis of the safety standard or regulation invoked by the Defendant is crucial to determine whether it is appropriate to create the rebuttable presumption in the first place. 3. Evidence of Negligent Design Kia also argued that even if the statutory presumption did not apply, the evidence supporting the jury s finding on negligence was legally insufficient. During trial, the parties agreed the airbag should have deployed and the reason the air bag did not deploy was that there was an open circuit in the wiring harness, or in other words, that a deficiency in the wiring interrupted the flow of electricity through the harness. 13 The Ruizes trial theory was that two defectively designed connectors within the wiring harness were the cause of the open circuit. On appeal, Kia contended the Ruizes expert, Geoffrey Mahon, failed to identify the specific defect that caused the open circuit and failed to rule out possible sources of the open circuit other than the two connectors. 14 With respect to the first of Kia s two contentions, the Court disagreed, pointing out that Mahon s testimony demonstrated his conclusion that the cause of the open circuit was the connector to either the air-bag module or the clock spring. Not only did Mahon identify several deficiencies in the designs of these two connectors by comparing them to alternative designs by Packard Electric and Volkswagen in model-year 2002 vehicles, but also Mahon eliminated other causes, such as the Airbag Diagnostic Unit ( ADU ), the clock spring, the module, and the wiring. Mahon also explained the deficiencies in how the Kia module connector locked into place with tabs on only one side, which allowed for a bit of motion that you can generate on [the other] side, which can cause the connector to vibrate out and cause a loss of electrical connectivity. 15 Mahon also disapproved of the Kia clock-spring connector in comparison to the Packard and Volkswagen clock spring connectors, which both had additional locking devices that the Kia s clock spring connector lacked. In addition, Mahon pointed out the Packard clock spring connector included a larger metal surface than the Kia connector did, which afforded a greater chance that good metal-to metal contact would exist. 16 Moreover, Mahon opined in his testimony that the alternative designs were safer as well as technologically and economically feasible at the time the 2002 Spectra was designed, as they were in production in other vehicles. 17 If Kia had utilized either of these designs, Mahon concluded, then the risk of the open circuit that occurred during 13 Id. at Kia Motors Corp. v. Lawrence Ruiz, et al, 57 Tex. S. Ct. J. 375, (Tex. 2014). 11 Id. at Id Id. at Id. at Id. 17 Id.

10 the Ruizes accident would have been significantly reduced. The Court rebutted Kia s argument on appeal that the only evidence of a defect was product failure, discussing Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 807 (Tex. 2006), a tire manufacturing defect case in which the Court held that Texas law does not generally recognize a product failure standing alone as proof of defect. The Court pointed out that the expert in Cooper Tire, as opposed to the expert in this case, had several deficiencies in his testimony, including the novel nature of the theory that wax contamination is a cause of tread separation and the lack of general acceptance in the scientific community that theory., among other things. 18 The Court similarly distinguished the Ruizes case from the Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) case, pointing out that in that manufacturing defect case, the plaintiff s expert could say no more than that he suspects the electrical system caused the fire in the truck while the plaintiff was driving it. 19 In the case against Kia, by contrast, the Court acknowledged Mahon s testimony did not suffer from these types of shortfalls. 20 The Court next addressed Kia s second argument: that Mahon s testimony was legally insufficient because he did not rule out a third connector, the ADU connector, or a manufacturing defect in the module or clock spring connector as possible culprits of the open circuit. The Court disagreed, explaining first that Mahon s testimony concerning the fact that he and Kia s consulting expert found nothing wrong with the driver s side circuit wires while they were attached to the connector along with the experts triggering the intermittent open circuit during testing that did not involve the ADU connector together comprised some evidence that the ADU connector was not the cause of the open circuit that resulted in the failure of the air bag to deploy. 21 The Court also disagreed with Kia s assumption that the fact that the air bag failed to deploy was in and of itself evidence of a manufacturing defect the plaintiffs were called upon to disprove. Significantly, the Court pointed out it had never held that a manufacturing defect must be ruled out in all design-defect cases, or vice versa. 22 Instead, the Court noted, it had merely determined an expert should rule out any other 18 Id. at Id. (citing Ridgway, 135 S.W.3d at ). plausible causes. 23 The Ruizes presented evidence that a design defect caused the open circuit. Thus, the Court refused to reverse the jury s finding based on any failure by the plaintiffs expert to exclude a manufacturing defect as a possible cause of the open circuit. 4. Evidentiary challenge Last, Kia challenged the admission into evidence at trial of an exhibit containing a spreadsheet describing all the 2002 warranty claims involving a short or open circuit in a frontal air bag in Spectra and similar Kia vehicles. This spreadsheet had been prepared by Kia in response to a discovery request made by the Ruizes. The spreadsheet summarized and listed 432 paid warranty claims, of which 67 warranty claims concerned the code 56 problem at issue in this case. The trial court admitted the evidence over Kia s objections on hearsay and relevancy grounds. The court of appeals held admission of the evidence did not constitute an abuse of discretion because: a) the sections of the spreadsheet concerning the code 56 claims qualified as admission by party-opponent under Texas Rule of Evidence 801; b) Kia had waived any error regarding the remaining portions of the spreadsheet by failing to request a limiting instruction; and c) regardless, any error in admitting the spreadsheet was harmless. The Texas Supreme Court disagreed with the court of appeals, attacking its decision from various angles. First, the Court criticized the court of appeals for appear[ing] to hold that, if one portion of a document is admissible, and another portion is inadmissible, a party must request a limiting instruction to preserve error in the admission of the improper portion, a conclusion which the Court stated mischaracterizes the nature of a limiting instruction. 24 Second, the Court stated even if the code-56 warranty claims were not hearsay, Texas Rule of Evidence 402 still required such information be relevant, a requirement which the court of appeals failed to discuss in its opinion. Although Kia s corporate representative testified at trial about information contained in the code-56 claims portion of the spreadsheet, the Court held Kia did not waive its relevance complaint about the trial court s admission of the spreadsheet because Kia objected to admission of the evidence of the warranty claims multiple times Tex. S. Ct. J. at Id. at Id. at Id. 24 Id. at 385.

11 Citing to Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 138 (Tex. 2004), which held that evidence of other incidents concerning a product may be relevant if the incidents occurred under reasonably similar (though not necessarily identical conditions), the Court pointed out that even the plaintiffs effectively conceded in their briefing that the claims on the spreadsheet that did not involve the code 56 were not relevant. Instead, the Ruizes apparently argued only that any error in admitting such information was harmless. Thus, the Court noted, this significant concession meant it was undisputed that nearly eighty-five percent of the claims on the spreadsheet admitted into evidence were irrelevant. With respect to the code 56 claims on the spreadsheet, the Court agreed with Kia that some (but not all) of even those claims were not sufficiently similar to the Ruizes claims to be considered relevant. The Court stated: [g]iven that the alleged defect here involves the design of the connectors at the clock spring and air-bag module, a particular code- 56 warranty claim must at least implicate one of the connectors as the source of the open circuit. 25 The Court stated it did not matter what purpose the claims were offered to show whether defect, Kia s notice of open circuits, or to rebut Kia s contention that Lawrence Ruiz s replacement of the radio caused the open circuit the trial court erred in admitting the spreadsheet because the claims that did not involve a code 56 claim and the code-56 claims that did not concern the module connector or the clock-spring connector were all irrelevant. 26 The Court then concluded that the trial court s admission of the spreadsheet was reversible error, primarily because the record demonstrates significant emphasis throughout trial on the overwhelming number of claims that were not relevant. 27 The Court considered the trial court s admission of the evidence to be harmful error despite the fact that, as the court of appeals pointed out and the Supreme Court agreed, the spreadsheet was not the only evidence of a defect. To support this unusual conclusion, the Court noted that: (1) whether a defect existed was hotly contested by the experts at trial; (2) the spreadsheet was an oversized (18" by 24"), sixteen paged document that was one of the exhibits requested by the jury during deliberations ; and (3) the sheer volume : of irrelevant and damaging information contained in the spreadsheet and the focus 25 Id. at The Court went on to hold that given the claims were inadmissible for any purpose, Kia did not waive error by not requesting any limiting instructions under Rule Id. at on it at trial made it difficult to overlook the likely effect it had. 28 Based upon these considerations, the Court reversed and remanded the case for a new trial. 5. Conclusion While the Court ruled in favor of the plaintiffs with respect to the first two issues, the upshot of the case is by and large unfortunate for consumers seeking recovery for their products liability injuries. As a practical matter, it appears the Court in Kia Motors went from an evidentiary standard requiring a showing that other incidents are sufficiently similar to a standard that, as a practical matter, requires the other incidents to be nearly identical in order for the past incidents to be considered relevant in products liability cases in Texas. B. In re Ford Motor Co., No , 2014 WL (Tex. March 28, 2014) (Not Released for Publication). In this design defect case 29 involving a writ of mandamus concerning a discovery dispute, the Texas Supreme Court appears to have limited the scope of permissible discovery with respect to Rule 195. In this case, the plaintiff was seeking to to expose potential bias of the defendant s two testifying experts by inquiring at their depositions into the frequency with which they testified in favor of design-defect defendants. 30 In addition, plaintiff sought to depose a corporate representative from each expert s employer, arguing that the additional depositions were critical to demonstrate that each of the defendants testifying experts had a bias in favor of Ford and other automobile manufacturers. The Court stated that while Rule permits parties to discover information about the bias of any expert witness, Rule 195 provides the avenues for obtaining this information, limiting testifying expert discovery to that acquired through disclosures, expert 28 Id. 29 The facts are not significant to the disposition of the case. Plaintiff Morales was injured after a Ford vehicle ran over him. The plaintiff had been fleeing the police on foot after leaving his car when he was chased by police on the suspicion of drunk driving. In pursuit, one of the officers exited his 2004 Ford Crown Victoria to apprehend the plaintiff, which the officer successfully did. While the officer was attempting to handcuff the plaintiff, the police car began rolling backwards toward the pair, struck the officer, and then ran over and came to rest on top of Morales. Morales brought design-defect claims against Ford to recover for his injuries, alleging that the Ford had a defect in its design that permitted the officer to place the gear-shift between park and reverse, which then triggered the car to go into idle power reverse at * WL at *2.

12 reports, and oral depositions of expert witnesses. 31 The Court criticized the plaintiff s deposition notices in this case, stating the notices underscored the risks involved with permitting overbroad discovery. The Court pointed out the notices sought information from the expert witnesses employers concerning sensitive matters, such as financial records from detailing the cases the companies had been involved in with Ford and any other automobile manufacturers. The Court further opined: [s]uch a fishing expedition, seeking sensitive information covering twelve years, is just the type of overbroad discovery the rules are intended to prevent. 32 Accordingly, the Court held, the requested discovery was impermissible. In doing so, the Court stressed it was not unduly limiting discovery of an expert s bias, because this type of discovery is clearly allowed under the rules. Rather, the Court pointed out, plaintiffs will still be entitled to seek the most probative information regarding the bias of a testifying expert from the expert herself. 33 The Court acknowledged Plaintiffs were correct in arguing the Court had previously permitted the deposition of an expert s employer in the case Walker v. Packer, 827 S.W.2d 833, (Tex. 1992). However, the Court reasoned, Walker was decided prior to the adoption of Rule 195, which established disclosures, expert reports, and oral depositions as the permissible methods for expert discovery. 34 In addition, the Court pointed out Walker was distinguishable from the case at hand, because Walker dealt with a situation in which the expert testified at his deposition that his employer had no policy that prohibited or restricted the doctors it employed from testifying in favor of plaintiffs in medical malpractice cases. After the expert s deposition, though, the plaintiffs in Walker discovered evidence in an unrelated case that contradicted this assertion. Here, the Court noted, neither expert s credibility has been impugned in this case [a]nd Morales has not demonstrated any other circumstance to warrant deposing the witnesses employers corporate representative. 35 What is interesting about this case is that rather than just relying on the clear distinguishing factors in Walker to reach its result the Court first argued that Walker was decided prior to the adoption of Rule 195. This suggests the present Supreme Court might not have reached the same result in Walker had the case 31 Id. at Id. at *3. 33 Id. at *4. 34 Id. 35 Id. 6 been brought today. Practitioners would be wise to keep in mind the fact that increasingly, the Court is limiting the scope of discovery, even discovery that appears to be specifically provided for by the Texas Rules of Civil Procedure. II. PREEMPTION IN PHARMACEUTICAL CASES: A CATCH-22 FOR INJURED CONSUMERS. A. Background of the United States Supreme Court s Opinions On June 23, 2011, the Supreme Court changed the field of pharmaceutical litigation when it issued its opinion in PLIVA, Inc. v. Mensing, 131 S.Ct L.Ed.2d 580 (2011). In the 5-4 split decision, Justice Clarence Thomas, the author for the majority, concluded federal law preempts state failure-to-warn claims with respect to generic drug manufacturers on the grounds that these manufacturers are prohibited by federal law from changing the drug labels to comply with their state tort duties to alter the label to include an adequate warning. This result was surprising given that two years earlier in Wyeth v. Levine, 555 U.S. 555 (2009), the Supreme Court had concluded the mere fact that the Food and Administration had approved the label for the brand name drug Phenergan did not preempt the state court judgment in favor of the plaintiff against the drug manufacturer with respect to claimant s state law failure to warn claims. Despite the fact that Levine held state law failure-to warn claims were not preempted with respect to brand name drugs, the Court in Mensing came right back two years later and concluded the same failure to warn claims are preempted when the drug in question is a generic one. Justice Thomas recognized that from the perspective of Mensing and Demahy [the plaintiffs in the consolidated cases], finding pre-emption here but not in Wyeth makes little sense. 36 He reasoned, though, that pre-emption applied with respect to the generic brand manufacturer, who manufactured and sold the product the plaintiffs consumed, because federal regulations, as interpreted by the FDA, prevented the [generic] Manufacturers from independently changing their generic drugs' safety labels. 37 Thus, the generic brand could not comply with its state law tort duty to alter the brand drug label to include a warning about the dangerous side effects of long-term use of the drug and at the same time comply with federal law, which required the label remain the same as the brand name drug label. There are three types of preemption: express preemption; implied preemption where the Federal 36 Mensing, 131 S.Ct. at Mensing, 131 S.Ct. at 2577.

13 Regulations are so broad in scope so as to preclude any state law; and conflict preemption that prevents enforcement of state laws that conflict with the Federal Regulations or would frustrate their purpose. The Supreme Court used the third conflict preemption to destroy the defect claim. The practical effect of this decision was that consumers of nearly 75 percent of the prescription drugs dispensed in this country were suddenly left without any failureto-warn state law tort remedies. The opinion also effectively undermined the purpose of the Hatch- Watchman Amendments, which was to boost utilization of less expensive generic drugs. After Mensing, plaintiffs attorneys theorized the decision did not preclude other state law claims against generic drug manufacturers, such as claims for negligence, breach of warranty, and design defect. Such hopes were dashed in the final week of the United States Supreme Court s session, though, when the Court rejected the First Circuit s efforts to avoid the harsh effect of Mensing in generic drug cases by ruling in Mutual Pharmaceutical Co. Inc., v. Bartlett that design defect cases against generic drug manufacturers were not preempted. The Supreme Court overturned the First Circuit s decision in Mutual Pharmaceutical Co. Inc., v. Bartlett, 133 S.Ct (2013), ruling that design defect cases are in fact preempted by federal law on the grounds that such cases effectively turn on whether the drug s warnings were adequate. In doing so, the Supreme Court threw out a $21 million verdict for a plaintiff who took Mutual s generic sulindac for shoulder pain and later developed Steven-Johnson s syndrome and toxic epidermal necrolysis, which rendered her permanently blind and disabled. Mrs. Bartlett s case evoked sympathy from all of the Justices (both majority and dissent alike), leading Justice Sotomayor to posit one particularly harsh criticism of the majority when she stated that although the majority lamented the plaintiffs tragic condition, responsibility for the fact that [the plaintiff] Karen Bartlett has been deprived of a remedy for her injuries rests with this Court. 38 Justice Sotomayor continued: [i]f our established pre-emption principles were properly applied in this case, and if New Hampshire law were correctly construed, then federal law would pose no barrier to Ms. Bartlett s recovery. 39 After Bartlett, some trial lawyers pointed out footnote 4 of the opinion, in which Justice Alito, the author of the majority opinion, stated that his opinion did not address state design defect claims that parallel the federal misbranding statute, 21 U.S.C. 38 Bartlett, 133 S.Ct Id (j), because the jury was not asked to find whether new evidence concerning sulindac [the drug in question] that had not been made available to the FDA rendered sulindac so dangerous as to be misbranded under the federal misbranding statute. 40 B Fifth Circuit Cases and Preemption Notwithstanding footnote 4 in Bartlett and the high hopes it might have once inspired, it appears that, at least in the 5th Circuit, until the FDA promulgates new regulations permitting generic drug manufacturers to change their labels, there is little recourse for consumers who are injured by generic drugs. This remains the case despite the fact that the consumers would have recourse if they had purchased the same drug under the brand name and despite the fact that most brand name drug sales cease once the brand becomes available in the generic form. Indeed, just this year, the Fifth Circuit affirmed both the dismissal of claims against generic manufacturers of prescription drug metoclopramide and the grant of summary judgment against brand name manufacturers of metoclopramide (Reglan) in consolidated cases from the district courts in Mississippi and Texas in Lashley v. Pfizer, Inc., Nos & , 2014 WL (5th Cir. Feb. 21, 2014). Lashley was originally issued as an unpublished decision, but since its release, the panel has granted a motion to publish the opinion, which makes it binding precedent. In the Mississippi case, Appellant Walter Lashley brought claims against the generic defendants based upon their sale and distribution of the drug to Lashley. Even though he had not ingested the brand name drug, Lashley s claims against the brand defendants, Pfizer, Inc., arose out of the allegedly false and misleading representations made by the brand defendants to the medical community. Similarly, in Texas, Appellant Maria Del Valle consumed generic metoclopramide from 2004 until 2011 and developed (like Appellant Lashley did) tardive dyskinesia and akathisia as a result of taking the drug. Her claims against both the generic defendant and the brand name defendant, Schwarz Pharma, Inc., mirrored those of Lashley, including allegations concerning negligence, gross negligence, strict liability, fraud, suppression of evidence, breach of warranty as to merchantability, breach of warranty as to fitness for a particular purpose, and misrepresentation Id. at 2477, n WL at * 4. In addition, Appellant Del Valle brought a claim against the generic brand defendant for deceptive trade practices.

14 The two cases were consolidated on appeal at the Fifth Circuit after the respective district courts dismissed the cases against the generic manufacturers, finding them to be preempted under PLIVA, Inc. v. Mensing, 131 S.Ct (2011), and granted summary judgment in favor of the brand manufacturers on the grounds that neither Appellant had ever ingested the brand name product, Reglan. With respect to its decision that the claims against the generic brand defendants were preempted, the Court argued that at their core, all Lashley and Del Valle s claims against the generic manufacturers turn on the adequacy of labeling and related information, and can thus be construed as failure-to-warn claims. 42 The plaintiffs also argued the generic manufacturers should be liable in this instance because they had failed to conform to the 2004 label change. The Fifth Circuit disagreed, pointing out such a claim would be a breach of federal labeling obligations, sounding exclusively in federal, rather than state law, and thus, would be preempted as well. As for the plaintiffs non failure to warn claims (strict liability, breach of warranty, etc.), the Court, citing Bartlett, ruled those claims were preempted as well because assuming distribution of the drug was acceptable in the first place, any useful action (or lack thereof) for which the companies could be held responsible would necessarily involve some form of warning. 43 The plaintiffs argued some of their claims based on state law against the generic drug manufacturers were parallel to federal law claims, and thus, not preempted. 44 The Court disagreed, concluding the inquiry was not whether there are parallel claims, but whether the state law claim is impliedly preempted. 45 Under such reasoning, it appears most, if not all, claims against generic drug makers would be precluded in the Fifth Circuit. Similarly, the Fifth Circuit foreclosed all hope of recovery for plaintiffs in this situation under alternate theories in the second portion of the opinion when the Court affirmed the district courts grant of summary judgment to the brand name manufacturers of the drug in question. The Court first pointed out that both states where Lashley (from Mississippi) and Del Valle (from Texas) filed their cases had products liability laws in place which shield[ed] the companies from liability for products they did not create. 46 In Texas, for example, 47 the Court noted that a products liability action is defined broadly as any action against a manufacturer or seller for recovery of damages arising out of personal injury that is purportedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty or any other theory or combination of theories. 48 The Texas Supreme Court has concluded that under this statute, entities qualify as manufacturers only as it concerns their own products. Accordingly, the Fifth Circuit concluded the brand defendants could not be held liable under Texas products liability law because Del Valle admitted she did not ingest their products. In addition, the Fifth Circuit stated that under the rebuttable presumption contained in Texas Civil Practice and Remedies Code (a)(1), the brand manufacturer would have had no duty to warn because the FDA had approved the warnings or information accompanying the medication at the time Del Valle ingested it. Although Del Vall argued the Schwarz brand defendants lost their presumption of non-liability because of fraud perpetrated on the FDA, the FDA has not made such a finding and, therefore any avenue for overturning the presumption was barred to Del Valle. 49 A few months later, a three judge panel of the Fifth Circuit confirmed just how difficult it is for injured consumers to obtain recovery for their injuries caused by generic brand drugs in Eckhardt v. Qualitest Pharma., Inc., et. al., No , 2014 WL (5 th Cir. May 13, 2014). In that case, the plaintiff, Roy Eckhardt, developed a severe neurological disorder after his protracted use of the generic drug metoclopramide (brand name Reglan), which he used for gastrointestinal problems. Eckhardt, as other plaintiffs in this situation have done, sued both the brand name drug manufacturer, who developed and received FDA approval for the drug, as well as the generic drug manufacturer, who manufactured and sold the drug he consumed. The plaintiff took the drug from , during which time the drug label indicated patients should not use the drug over 12 weeks. In 2009, subsequent to the plaintiff s use of the product, the FDA mandated a black box warning the strongest warning the FDA can mandate on a drug be added to metoclopramide making clear the risk of developing tardive 42 Lashley, 2014 WL at *5. 43 Id. at *6. 44 Id. 45 Id. at *6. 46 Id This paper will not discuss the Mississippi Products Liability Act. 48 Id. at * 7 (citing TEX. CIV. PRAC. & REM. CODE (2)). 49 Id. at *7.

15 dyskinesia. 50 Eckhardt acknowledged he never used the brand name of the drug. Eckhardt initially filed his complaint against the two generic manufacturers of the drug, asserting claims for negligence, strict liability, breach of implied warranties, misrepresentation, fraud and claims under the Texas Deceptive Trade Practices- Consumer Protection Act. Subsequently, he amended his complaint to add Wyeth and Schwarz Pharma, the brand name manufacturers, contending they made misrepresentations to the medical community in their capacity as the owners of the marketing application for Reglan. The district court granted both the generic defendants motion to dismiss for failure to state a claim and the brand name defendants motion for summary judgment. The Fifth Circuit panel affirmed the district court s rulings. With respect to the 12(b)(6) dismissal against the generic defendants, the Fifth Circuit stated that although Eckhardt did not classify any of his claims against the generic defendants as failure-to warn claims, his main claim against the Generic Defendants is a products liability claim for a failure to warn about the dangers of metoclopramide. 51 As such, the Fifth Circuit stated the claims were preempted under Mensing. The Court also concluded Eckhardt s strict liability design defect claim against the generic defendants was preempted under Bartlett, even though Eckhardt pointed out that Texas law in this area is different from the applicable New Hampshire law (and thus, the result should not be the same). Indeed, in Bartlett, the Court held the New Hampshire strict liability claim was preempted because as an element of the claim, the fact-finder would end up needing to consider the product s labeling to perform the requisite risk/utility test. 52 Eckhardt argued that because Texas law does not require a cost-benefit analysis like the New Hampshire law does to prove a strict liability cause of action, Bartlett did not preclude his claims. The Fifth Circuit disagreed, reasoning that regardless of the cost-benefit analysis, Texas law requires that to prove a strict liability claim, the plaintiff must show a safer alternative design existed, and the fact finder must further conclude the generic brand manufacturers breached their duty by failing to 50 Eckhardt, 2014 WL at *2. adopt that alternative design. 53 However, the generic brand manufacturers were precluded by federal law from altering the design of the drug. Accordingly, the Fifth Circuit argued, no alternative design existed. 54 Thus, as in Bartlett, the state law claim against the generic manufacturers was preempted because it conflicted with federal law. Interestingly, Eckhardt also alleged the generic manufacturers failed to provide either him or his physician with any of the FDA-approved warnings. The Fifth Circuit acknowledged that failing to provide FDA-approved warnings would be a violation of both state and federal law, which constitutes a parallel claim that is not preempted. 55 However, the Fifth Circuit believed the district court correctly dismissed these claims because: 1) Eckhardt failed to allege adequately that the generic defendants did not provide him with the FDA approved warnings; and 2) a review of the factual allegations in Eckhardt s own complaint reveals the untimely allegation was contradicted. The Fifth Circuit also affirmed dismissal of his breach of warranty claims, finding that they were also preempted, as were his DTPA claims. With respect to the brand name manufacturers, Eckhardt argued he was not asserting any products liability claims against them. The Fifth Circuit disagreed, stating that the essence of Eckhardt s claim sounds in products liability. 56 To the extent Eckhardt raised products liability claims, the Court rejected those claims under the reasoning of Lashley. The Fifth Circuit also analyzed Eckhardt s fraud, negligence, and negligent misrepresentation claims as general tort claims, finding first that Eckhardt failed to allege sufficient facts for his fraud claim to survive under the heightened pleading standard of Rule 9. With respect to Eckhardt s negligence and negligent misrepresentation claims, the Fifth Circuit pointed out that [e]very circuit court has held (under the laws of several different states) that a brand-name manufacturer does not owe a duty to consumers who use a generic version of the drug. 57 Citing to Lashley, the Court affirmed the district court s grant of summary judgment with respect to all of the brand name defendants claims, holding that the brand name 51 Id. 52 See Bartlett, 133 S.Ct. at 2475 ( Given the impossibility of redesigning sulindac, the only way for Mutual to ameliorate the drug's risk-utility profile and thus to escape liability was to strengthen "the presence and efficacy of [sulindac's] warning" in such a way that the warning "avoid[ed] an unreasonable risk of harm from hidden dangers or from foreseeable uses.") Eckhardt, 2014 WL at *3, 54 Id. 55 Id. at *4. 56 Id. at *5. 57 Id. at *6.

16 defendants owed no duty to Eckhardt because he did not ingest their drugs. Thus, this judicially created Catch 22 for injured consumers appears to be nearly impenetrable in Texas, at least, for the time being. 58 III. PERSONAL JURISDICTION OVER FOREIGN DEFENDANTS IN PRODUCTS LIABILITY CASES Courts continue to struggle with how to conduct the personal jurisdiction minimum contacts analysis in the wake of the United States Supreme Court s plurality opinions in both Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102 (1987) and J. McIntrye Machinery, Ltd. v. Nicastro, 131 S.Ct (2011). In Asahi, the Court split on the first prong of the personal jurisdiction inquiry whether the foreign defendant had adequate minimum contacts with the plaintiff s chosen forum to meet the requirements of specific personal jurisdiction. 480 U.S The Court, however, agreed that in the circumstances of Asahi, exercising personal jurisdiction over the foreign defendant would be unfair and unreasonable and thus, would violate Due Process. Id. Justice Brennan wrote a concurring opinion, concluding that when a manufacturer puts a product in the stream of commerce that ultimately reaches the forum, then the manufacturer has purposefully availed itself of the forum if it was foreseeable the product would end up in the forum. Id. at 116. Writing for the plurality, Justice O Connor held that an additional contact beyond only placing the product in the stream of commerce is required to exercise jurisdiction over a foreign defendant. Id. at 112. Justice Brennan s approach became known as the stream of commerce test, and Justice O Connor s approach is called the stream-ofcommerce-plus test. Since the release of the Asahi opinion, the Circuit Courts of Appeals have taken varied approaches with respect to how to address the minimum contacts inquiry. 59 For example, the Fifth Circuit has adopted 58 This past year, medical device manufacturers have also found success with preemption arguments in federal court. See, e.g., Schouest v. Medtronic, Inc., No. 3:13-CV-203, 2014 WL (S.D. Tex. 2014) (finding in the medical device context that plaintiff s failure to warn, negligence, and express warranty claims against the manufacturer of the medical device that caused injury were preempted but that her fraud claims against the manufacturer were not expressly preempted); see also Muniz v. Medtronic, Inc., No. A-13-CA-451-SS, 2014 WL (W.D. Tex. March 20, 2014). 59 In McIntyre, the Supreme Court addressed the minimum contacts analysis again in a plurality opinion. 131 S.Ct While the majority agreed that New Jersey did not 10 the stream of commerce test from Justice Brennan s concurrence in Asahi, while the Fourth Circuit utilizes the stream of commerce plus approach, which requires a stronger showing than the Fifth Circuit s stream of commerce test to establish the requisite minimum contacts over a foreign defendant. Such disparate approaches have the potential to result in different outcomes depending on the Circuit in which the parties find themselves. A. In re Chinese-Manufactured Drywall Products Liability Litigation, 742 F.3d 576 (5th Cir. 2014). This apparent Circuit conflict was analyzed in a recent case, In re Chinese-Manufactured Drywall Products Liability Litigation, 742 F.3d 576 (5th Cir. 2014), which was decided in January of this year. In that case, the Fifth Circuit was presented with the complicated task of determining how the Fourth Circuit would have ruled on the personal jurisdiction dispute in that case. In re Chinese-Manufactured Drywall Products Liability Litigation involved several cases in the Chinese Drywall multidistrict litigation. From during a housing boom, Chinese companies manufactured large quantities of gypsum wallboard ( Chinese dryboard ) that were sold to companies in the United States. After homeowners suffered property and other damages as a result of alleged defects in the drywall, these and other affected parties commenced actions against the entities that manufactured, sold, imported, and installed the Chinese drywall. When the cases multiplied, the Judicial Panel on Multidistrict Litigation transferred the drywall-related lawsuits to the Eastern District of Louisiana. Four cases have reached the Fifth Circuit from the MDL: Germano, Mitchell, Gross, and Wilz. Germano, which is the case cited above and the first of the MDL cases to reach the Court of Appeals, is a class action that was originally filed by homeowners in Virginia in the United States Eastern District Court for the Eastern District of Virginia. In that case, the Defendant, Taishan Gypsum Co. Ltd. ( TG ), is a have personal jurisdiction over the foreign defendant manufacturer who had neither marketed nor directly sold its products in that state, the Justices split once again on the minimum contacts assessment. Id. at 2785, Writing for the plurality, Justice Kennedy stated that the foreign defendant must purposefully avail itself of the forum and the foreseeability that the product would reach the forum was not sufficient to confer jurisdiction. Id. at Justice Breyer in his concurring opinion stated that resolving the case under the facts presented required nothing more than adhering to past precedent given that the Court had never found that a single isolated sale, even if accompanied by the kind of sales effort indicated here, is sufficient. Id. at 2792.

17 Chinese company with its principal place of business in China that manufactures and sells drywall. For approximately two years, TG manufactured and sold drywall to Venture, a Virginia company that distributed the drywall to customers in multiple states. The Germano Plaintiffs filed a putative class action on May 1, 2009, asserting claims against TG for negligence, negligence per se, breach of express and/or implied warranties, private nuisance, unjust enrichment, and violations of the Virginia Consumer Protection Act. In addition, they sought equitable and injunctive relief, as well as medical monitoring to prevent health issues resulting from their exposure to the drywall. Plaintiffs served TG with the First Amended Complaint in Chinese in accordance with the Hague Convention on August 3, 2009, and TG, at the time of the appeal, did not dispute that it had been properly served with the First Amended Complaint. In October 2009, the Germano case was transferred to the MDL. Subsequently, on November 18, 2009, the district court for the Eastern District of Louisiana granted the original plaintiffs motion to file a default judgment pursuant to Federal Rule of Civil Procedure 55 because TG had failed to appear or defend the action. A preliminary default judgment was issued, and on the same day, the district court granted the plaintiffs motion to file a Second Amended Complaint, which did not assert any new claims, but merely expanded the plaintiff class to a nationwide class. In December 2009, the district court also granted the motion of seven couples who wished to intervene in the action. In February 2010, the district court held a hearing that lasted two days regarding the damages that the plaintiffs had allegedly suffered. The Court issued a default judgment on May 11, 2010, awarding the plaintiffs and intervenors damages, pre-judgment interest, post-judgment interest, and costs. TG failed to file an appearance in this action until June 10, On that same day, TG also filed a notice of appeal, requesting to have the default judgment vacated for lack of personal jurisdiction and because the service of process was allegedly defective. After the court of appeals remanded the case to the district judge for the limited purpose of ruling on the motion to vacate the default judgment, the parties spent over a year and half involved in lengthy discovery regarding personal jurisdiction over TG. The district court, applying Fifth Circuit precedent and the stream of commerce test, concluded it had specific jurisdiction over TG because TG had placed the drywall in the stream of commerce with knowledge that it would reach Virginia to be used in Virginia homes. The district court further concluded plaintiffs claims related to or arose out of TG s contacts with Virginia and that exercising jurisdiction over TG comported with traditional 11 notions of fair play and substantial justice. 60 The district court further rejected TG s argument that the default judgment was invalid because it had not been properly served with Second Amended Complaint. As the district court explained in its Order & Reasons, TG was properly served with the First Amended Complaint, and the Second Amended Complaint did not add any new causes of action but rather merely expanded the class definition against TG to a national class and expanded the Virginia Consumer Protection claims to encompass the corresponding consumer protection claims for each new state involved. On appeal to the Fifth Circuit, TG argued first that the district court erroneously applied the Fifth Circuit precedent to analyze the minimum contacts when it should have applied the more stringent Fourth Circuit precedent, which, T.G. further asserted, would have yielded the opposite result. The Fifth Circuit disagreed, stating that it need not determine which circuit s law should apply because regardless of which circuit s approach we use, the outcome is the same. 61 Analyzing TG s forum contacts under the tougher Fourth Circuit three-part test, the Fifth Circuit Court first pointed out the numerous facts supporting the conclusion that TG s contacts with Virginia were neither random nor isolated, 62 including, among other things, the fact that TG designed the product and packaging for Venture, a known Virginia resident; the fact that TG included the name of a Virginia company along with a phone number with a Virginia area code on its product; the fact that TG entered into two contracts with Venture to sell substantial quantities of drywall to a known Virginia resident; and the fact that TG attempted to expand its future drywall sales in the U.S. via Venture; etc. Thus, considering such facts, the Court concluded the first prong of the Fourth Circuit test was met because TG purposefully availed itself of Virginia. 63 Turning to the second prong of the Fourth Circuit test, the Fifth Circuit explained that this prong looks at the relationship between the defendant s forum contacts and the plaintiff s claims. 64 This prong was easily satisfied because TG s contacts with the forum selling the defective drywall to Venture formed the genesis of the dispute. The third prong, constitutional reasonableness, was also satisfied because: F.3d at Id. at Id. at Id. at Id.

18 1) even though, as a foreign defendant TG would face some burdens if subjected to personal jurisdiction in Virginia, this burden was somewhat offset by TG s size and the magnitude of TG s operations ; 2) Virginia has a great interest in its citizens being able to litigate against TG for the alleged damages caused to their homes ); 3) the plaintiffs also have a strong interest in obtaining appropriate recourse for their claims against TG; and 4) the judicial system has a strong interest in resolving related, consolidated claims against TG in the MDL. 65 After determining there was personal jurisdiction over TG, the Court considered TG s second argument that the default judgment should be vacated because TG was not properly served with the Second Amended Complaint or the motion to intervene. 66 The Fifth Circuit disagreed for several reasons. First, TG was already in default when the district court granted the motions to file the Second Amended Complaint and to intervene. Consequently, Federal Rule 5(a)(2), which does not require a defaulting party to be served with a pleading unless the pleading asserts a new claim for relief, governed the service requirements of the two pleadings. The Fifth Circuit agreed with the district court that neither the Second Amended Complaint nor the motion to intervene asserted any new claims. Rather, the Second Amended Complaint merely enlarged the class to include a nation-wide class and expanded the Virginia consumer claims to encompass the corresponding consumer claims for each state involved in the action. Therefore, the Court concluded, the default judgment was not void. In addition, the Court determined TG had not demonstrated the district court abused its discretion by refusing to vacate the default judgment. Under Federal Rules of Civil Procedure 55(c) and 60(b), a district court may set aside a default judgment for good cause, which requires a consideration of three factors: a) whether the default was willful; b) whether vacating the default judgment would prejudice the plaintiffs; and c) whether the defendant has presented a meritorious defense. While the district court declined to decide whether TG s failure to respond was willful, the Circuit Court 65 Id. at Id. at pointed out that the district court weighed several relevant factors, including the merit of TG s asserted defense, before determining the vacatur was unwarranted. 67 For example, TG waited close to a year after it was served with the First Amended Complaint to file any sort of response or notice of appearance. Although TG argued that it promptly hired attorneys in the United States once the default judgment was entered, the Court stated it would not consider how TG responded once the default judgment was entered, but rather its inquiry was properly [focused] on whether TG willfully failed to respond to the First Amended Complaint within the allotted time period. 68 The Circuit Court concluded TG had not met its burden to show its neglect was excusable. This case represents a victory for consumers who are harmed by foreign manufacturers. A few notable footnotes bear mention. Practitioners participating in MDL should be aware that the Courts will look at the minimum contacts with the forum in which the case originated, not the forum of the MDL Court. Indeed, in footnote 8 of this case, the Court stated that the practitioners did not dispute and the Court agreed that the minimum contacts inquiry should properly be focused on the Chinese manufacturer s contacts with Virginia (where the case was first filed) and not with the Louisiana, the site of the MDL court where the case was ultimately transferred. In footnote 11, the Court critiqued the plaintiffs briefing for citing facts regarding the nationwide contacts of TG and its wholly owned subsidiary, TTP, which plaintiffs collectively refer to as Taishan. 69 The Court noted that McIntyre requires the defendant to intend to serve a market in a specific forum state, rather than merely the United States market in general. Accordingly, the Court stated, the appropriate focus should be exclusively on the forum state specific contacts, rather than TG s nationwide contacts. Thus, practitioners should keep in mind that with these inquiries, the minimum contacts analysis will concern the state specific contacts, and that nationwide contacts will not carry much, if any, weight with the Court. In addition, the Court noted in footnote 15 that the two contracts with Venture specified any disputes would be settled via arbitration in China. TG argued that it was unforeseeable for it to be subjected to suit in Virginia given the arbitration provision. The Circuit 67 Id. at Id. at The district court refused to impute TTP s contacts onto TG and concluded that TTP did not have any contacts with Virginia during the pertinent time frame. The defendants did not contest these findings on appeal.

19 Court disagreed, stating that plaintiffs were homeowners in Virginia who were not parties to the two contracts between TG and Venture. Thus, their claims were not governed by the arbitration clauses. Moreover, it was not unreasonably foreseeable that TG would be hauled into a Virginia court given that TG knew Venture was a drywall distributor in Virginia and that its products would be sold to endusers, many of which were Virginia residents. B. In re Chinese-Manufactured Drywall Products Liability Litigation, No , 2014 WL (5th Cir. May 20, 2014). Five months later in May of this year, three other cases in the MDL reached the Fifth Circuit as well. These cases, which the Fifth Circuit named Mitchell, Gross, and Wilz, originated in district courts in Florida (Mitchell) and Louisiana (Gross and Wilz). The two defendants in most of these cases were T.G., once again, and Tai an Taishan Plasterboard Company Limited ( TTP ) 70, which was also a Chinese company that manufactured and sold drywall. 71 In the Florida case, Mitchell, like Germano, the district court granted a default motion against TG after it failed to appear. The district court denied TG s motions to vacate the preliminary default under Rule 55(c) and to dismiss the case for lack of personal jurisdiction, determining instead that personal jurisdiction was appropriate over TG in Florida. The district court also concluded that TTP s contacts could be imputed to TG for the purposes of personal jurisdiction. 72 Subsequently, the district court certified the case for an interlocutory appeal. On appeal, TG first argued that TTP s contacts should not be imputed to TG for the purpose of determining jurisdiction. TG asserted the district court mistakenly applied Florida law, rather than Chinese law, with respect to the question of whether or not to impute TTP s Florida contacts to TG. In its briefing, however, TG acknowledged there was not much of a material difference between Chinese law and Florida law on this issue and that the outcome would be the same under either. Due to this fact, the Fifth Circuit Court applied Florida law, which recognizes that an agent s contacts with Florida can be imputed to its principal for jurisdictional purposes. 73 To determine whether an agency relationship exists, the following three requirements must exist: 70 TTP was a wholly owned subsidiary of TG that was only operating during the years Only TG is a defendant in Germano and Wilz WL at * WL at * (1) acknowledgement by the principal that the agent will act for him, (2) the agent s acceptance of the undertaking, and (3) control by the principal over the actions of the agent. 74 Furthermore, control is a central issue that must be considered. The Court concluded an agency relationship existed. TTP was created in 2006 by TG as wholly owned subsidiary for the purpose of executing certain sales without VAT invoices so that the company could still enjoy the exemption from the VAT tax in China. 75 Moreover, TG s own employees sat on the Board of Directors for TTP, which only met sporadically and appeared to report directly to TG. In addition, TG infused TP with capital contributions, sold TTP its equipment, and rented a factory to the subsidiary. Once TTP ceased operating, TG bought back its equipment, factory, and offices, but the financial records do not reveal the amounts of these buy back purchases. The offices were in close proximity to one another only 1,000 meters apart. TTP managed all of the export sales that TG had previously conducted. TTP was authorized to utilize the Taishan brand and trademark. Moreover, the majority of TTP s employees were TG employees who went back to work for TG when TTP ceased operating. During their employment with TTP, these employees continued to use TG addresses, phone numbers, business cards, and signature when communicating with customers. TTP employees further directed regular and potential customers to the TG website, and the TTP salespeople introduced their company as TG and did not mention TTP at all when they were giving introductions. The Court also found that TTP regularly held itself out to be the same entity as TG. Accordingly, the Court agreed with the district court that under such facts, imputation of TTP s contacts for the purposes of jurisdiction is appropriate. TTP allowed TG to act on its behalf. Conversely, TTP did not act on its own behalf. Second, the companies held themselves out to be the same entity to customers as described above. Last, TTP was created to fulfill a narrow purpose for TG and acted only to provide these services to TG. Accordingly, these factors establish that TG controlled TTP. Next, the Court overlay[ed] TTP and TG s contacts with Florida to analyze their sufficiency 74 Id. 75 The Court also pointed out that the district court based its agency determination for imputation purposes on nearly two years of jurisdictional discovery, multiple briefing rounds, as well as a hearing on the matter.

20 under the Florida long arm statute. Throughout its opinion, the Court refers to the combined entities as Taishan. Similar to Germano, these contacts were quite extensive, including, among other things, entering into a sole agency agreement with OTC a Florida company. In addition, Taishan sold drywall to two other Florida companies and conducted other business in Florida in connection with its drywall manufacturing. Such contacts demonstrated a general course of business in Florida for financial benefit, which is a requirement of the long arm statute. The contacts also met the requirement that the cause of action arise from Taishan s acts because the type of Chinese drywall that injured the homeowners and caused the damages was available for purchase in Florida. Indeed, in the Mitchell case, the Court stated the arise-from requirement is met because Mitchell s complaint alleges that the homebuilders incurred costs because they installed Taishan s drywall, the profile forms submitted by the parties demonstrate that the drywall at issue in Mitchell is traceable to Taishan, and testimony from a Florida homebuilder specified around 400 homes that contain Taishan drywall. 76 Last, Taishan argued the district court should have applied the more stringent Eleventh Circuit due process requirements rather than the Fifth Circuit approach. Just as in Germano, the Fifth Circuit concluded that regardless of which Circuit s test was utilized, the results would be the same. Analyzing the contacts under the Eleventh Circuit s more demanding test, the Court concluded aishan had the requisite contacts in Florida to support a finding of personal jurisdiction consistent with due process. Practitioners should note the Court stated in footnote 19 of the opinion that even though some of Taishan s shipments were marked FOB, this did not destroy its other contracts with Florida because Taishan arranged for the drywall to be shipped to Florida regardless of the FOB notation. The Court rejected Taishan s argument that the Court should read the complaint narrowly and require the Mitchell plaintiffs to prove that the drywall they installed could be traced directly to its activities in Florida. The Court stated that at this stage in the litigation, all Mitchell had to prove to establish personal jurisdiction by a preponderance of the evidence was that it is more likely than not that Taishan drywall connected from the Devon transaction ended up in Mitchell s hands and forms the basis of this action. 77 The Court concluded it was WL at * Id. at *17. Earlier in the opinion, the Court explained that a Pennsylvania company, Devon International, purchased 485, 044 sheets of drywall from TG, but that in the course of the transit to Pensacola, Florida the drywall was 14 reasonably foreseeable to Taishan that it would be defending a lawsuit in Florida given its numerous contacts and connections with the forum. Analyzing the case under the five part fairness test explained above, the Court also concluded it did not offend notions of fair play and substantial justice and that jurisdiction was proper over TG in Florida. Using the same rationale as it did in Germano, the Court further concluded the district court did not abuse its discretion in refusing to vacate the default judgment. The Fifth Circuit similarly held that with respect to the Gross and White cases, TG and TTP were alter egos under Louisiana law and that TTP s contacts could be imputed to TG. Moreover, even though Taishan lacked direct physical contact with Louisiana, 78 the contacts were substantial. Taishan sold at least 45,756 sheets of drywall that ended up in Louisiana. 79 Taishan informed its customers it was interested in selling its drywall to Louisiana and provided shipping rates and other information for shipping drywall to New Orleans. Taishan shipped drywall to New Orleans for a Louisiana company, GD Distributors. Invoices showed other shipments, such as a shipment of drywall from Taishan to a company in California, with the final destination being New Orleans, Louisiana. Significantly, the Fifth Circuit stated that with respect to minimum contacts, the test requires mere foreseeability or awareness that the product would end up in the forum state. 80 This awareness is a constitutionally sufficient basis for personal jurisdiction if the defendant s products made its way into the forum state while still in the stream of commerce, but [t]he defendant s contacts must be more than random, fortuitous, or attenuated, or of the unilateral activity of another party or third person. 81 Here, the Court concluded the test was more than satisfied because the owner of GD Distributors testified that Taishan absolutely understood the drywall was being sent to New Orleans, Louisiana. 82 damaged. North Pacific only purchased a fraction of what it had ordered from Devon, so Devon sold the remainder to distributors, wholesalers, and individuals. Devon sold some drywall to Emerald Coast Building Supply, who sold 840 boards of drywall to Rightway Drywall, who, in turn, sold the drywall in question to Mitchell, the named plaintiff. Id. at * Notably, the Court acknowledged that TTP and/or TG had never manufactured drywall, advertised, or performed services in Louisiana. Id. at * Id. at * Id. at * Id. 82 Id.

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